SWIMMING POOL SAFETY: NO RUNNING, NO SPLASHING, NO ALCOHOL AND WATCH OUT FOR ANTI-DISCRIMINATION LAWS
Why can’t the board enact a rule saying, “No children allowed in the swimming pool!” I get this question frequently from board members, who are disappointed, to say the least, when I explain that federal and state Fair Housing laws prohibit discrimination against ‘protected classes,’ and families with children are on that list.
The laws are strict and the penalties for violating them can be severe. Following these suggested dos and don’ts for swimming pool rules will help boards keep their associations out of trouble while keeping their residents in the swim.
DON’T establish age-related restrictions (with a few exceptions) and word them carefully if you do. Prohibiting children from swimming in the deep end, allowing children to swim only during designated times and designating ‘adults only’ lap lanes all would run afoul of the anti-discrimination laws. You can have a designated lap lane, but it must be open to all. And the pool must be large enough to accommodate the lane without diminishing the ability of children to enjoy the amenity.
DON’T create a separate pool – or a separate area of the pool designated for children only. Even if that option is financially or structurally feasible, it violates the law. “Separate but equal” didn’t work for racially segregated schools and it won’t work for age-restricted swimming pools,
DO base restrictions on objective criteria. You can require demonstrated ability to swim as a condition for swimming in the deep end- but all swimmers, not just young children, must be required to pass that test.
DO target behaviors, not people. If you’re concerned about noise in the pool, you can prohibit noise in the pool, but you can’t prohibit children from swimming there. You can prohibit floats and balls in the pool but you can’t prohibit children from playing with them. A rule requiring swim diapers ‘for children who aren’t toilet trained’ would also trip over anti-discrimination laws, because it fails to consider adults who might be incontinent. To make this rule nondiscriminatory, you can say, “Swimmers who are not toilet-trained or are incontinent must wear swim diapers,” or, even better, “Swim diapers or their equivalent must be worn if needed,’ leaving it up to individuals (or their parents) to decide if the safety equipment is needed, and eliminating the need for someone to verify compliance with this rule. (There won’t be many volunteers for this duty!)
DO make sure your rules serve a legitimate, necessary and non-discriminatory purpose. Simply saying the goal is to protect children isn’t enough. Courts will want to be sure protecting children from harm in the pool isn’t a thinly veiled pretext for excluding them.
DO make your rules neutral in their intent and even-handed in their impact. While the intent of a rule requiring adult supervision for children below a specified age may be to protect young children, its effect (denying them equal access to the amenity) may be discriminatory. The adult supervision issue is a bit hazy, however. Although some courts have found this to be discriminatory, Massachusetts courts haven’t ruled on the question. The rules for some municipal pools say if there is no lifeguard on duty, children under the age of 16 must be accompanied by an adult. An association rule following that model might be acceptable.
Discrimination against children is a major concern when drafting pool rules, but it isn’t the only one.
The association’s rules should also address health and safety issues as well as operation and maintenance requirements. Our suggestions:
Develop reasonable rules and regulations and enforce them consistently.
Post the pool rules at several central locations, including around the pool area. Distribute the rules to all residents at the beginning of each swimming season and publish reminders frequently in the association newsletter, on its Web site, on bulletin boards, etc.
Limit the pool’s hours of operation and post them clearly.
If you don’t have a lifeguard, post a sign informing residents that they swim at their own risk.
Prohibit glass and alcoholic beverages at poolside, and consider barring food as well.
Require that residents accompany their guests and limit the number of guests, especially during peak periods
Make sure the pool complies with all state and local health and safety requirements, including those for fences, locks, and other security features.
Install handrails for entering and exiting the pool.
Clearly mark pool depths and use buoys to separate the deep and shallow ends.
Keep appropriate safety equipment (first aid kit, ring buoys, a rope, and a reserve hook) at poolside.
Install a telephone providing quick and toll-free communication with emergency contacts – police, fire, ambulance, etc.
Establish a regular pool maintenance schedule; monitor water quality and chemical balance several times daily.
If you have an outside company service the pool, make sure it is insured and meets any state or local certification requirements.
Review your rules periodically and modify them, as needed, to address new concerns.
Have both your insurance agent and your attorney review your rules.
Make the rules sufficiently comprehensive and detailed to address health, safety, and legal liability concerns, but no more restrictive than necessary. You want residents to enjoy the pool – that’s why you have it in the first place.
Contact Mark Einhorn for pool rules and their implementation.